When the High Court of Justice rejected intervening to block Tuesday’s
Palestinian prisoner release, its statement that it would not do so because it
does not become involved in matters of state was a bit simpler than the
Regarding intervening on matters of state, like balancing
settlements (in the general sense, including illegal outposts), foreign policy
and national security, Supreme Court President Asher D. Grunis, who presided
over the prisoner release petition, had two groundbreaking back-to-back
decisions against many of the settler activists who effectively put him into
power right at the start of his now over one-year-old reign.
His first two
major decisions, just after taking over the reins, were ordering the state to
remove the Migron and Ulpana settlements.
These two rulings made his
right-wing supporters’ mouths drop open.
Some supporters were so shocked
that they angrily spoke out and wrote op-eds against former court president
Aharon Barak’s judicial activism, which had supposedly led to the
But Barak had retired years before, and the ruling was made by
Grunis, their own candidate.
While Almagor Terror Victims’ Association
head Meir Indor briefly tried to interject the court’s intervention on
settlement issues into the hearing on the prisoner release, neither the petition
itself, nor the state in response, nor the court in its opinion rejecting the
petition, spent much time on the issue.
Grunis even appeared patient with
Indor until he mentioned settlements, and then appeared ready to cut him off and
urged him to finish his comments.
So Grunis and the court do intervene on
settlement issues which implicate statecraft, but not on prisoner
In some cases, the comparison is apples and oranges. The Migron
decision, for example, was ultimately a domestic law issue of enforcing an
eviction (or rejecting blocking an eviction) once the Justice Ministry itself
took the position that the outpost was illegal (though there was significant
controversy about the ministry’s position).
But there are clearer cases
where the court has ordered the IDF to change the position of the West Bank
security barrier, despite IDF and state arguments that the placement of the wall
was a national security need and issue of state, after complaints by Palestinian
villagers that they were losing their land unfairly.
Almagor did not
mention these cases, but the court has also intervened to give the state a
mandatory set of factors for carrying out targeted killings and in the use of
certain weapons, such as white phosphorous – both of which could be viewed as
untouchable national security issues.
Outside international pressure
could be cited as a reason for the court’s intervention in those cases, but
would likely not consistently explain the court’s rulings.
answer likely lies in the mechanics of the cases.
When the court has
ordered a change in the West Bank barrier’s path, it has never declared an end
to the entire barrier – it has merely amended its path.
The court never
completely invalidated targeted killings or white phosphorous, it just provided
If the court vetoed a prisoner release, it would
complete the cancellation of a policy and would be singularly responsible for
bringing the peace process to a halt.
If the court crossed some prisoners
off the list, but not others, it would “own” the list of those being and not
being released – and since the Palestinians might not accept any amended list,
it might still be responsible for stopping the peace process.
differently: The court would rather not intervene, and only intervenes when it
can do so without making waves.
Whether this is a defensible legal
interpretation of when courts can and cannot intervene in state decisions is
debatable, but considering that even “activist” courts are usually considered
the weakest branch of government, it is not surprising.